Attorney-General's Reference No 34 of 2015

Perverting the course of justice will almost always require an immediate custodial sentence unless exceptional circumstances justify suspension. Sentence should reflect the seriousness of the underlying offence, the persistence of the conduct, and its actual or potential effect on the administration of justice.

The effect of custody on family life must be weighed proportionately against legitimate sentencing aims. As the offending becomes graver, the prospect that imprisonment will be disproportionate because of its family consequences progressively diminishes. The welfare impact on children remains mitigating when a suspended sentence is replaced, but it may be outweighed by seriousness and deterrence.

The offender was convicted at the Central Criminal Court of two offences of perverting the course of justice. Shortly after a murder and attempted murder arising from gang violence, she gave shelter on two occasions to one of the gunmen. About a month later, she made a false witness statement and lied to police about her contacts with him.

On 10 April 2015, the trial judge imposed concurrent sentences of 24 months’ imprisonment, suspended for two years, with supervision and unpaid work requirements. The Attorney General referred the sentence as unduly lenient. The central issue was whether the offender’s personal circumstances and responsibilities for two young children exceptionally justified suspension despite the gravity of the offending.

Decision

1. The court allowed the Attorney General’s reference. It declared the suspended sentence unduly lenient and substituted concurrent terms of 18 months’ immediate imprisonment.

2. Perverting the course of justice is ordinarily so serious that immediate custody is almost always required unless exceptional circumstances exist. The court followed Attorney General's Reference No 44 of 1994 [1996] 1 Cr App R (S) 256.

3. Applying the considerations identified in Tunney [2007] 1 Cr App R (S) 91, the underlying offending was exceptionally grave. The assistance was sustained rather than fleeting, and was provided twice during a critical stage of the investigation. The later false statement compounded the conduct. Although the assistance did not prevent arrest or prosecution, it had the potential to do so. A significant immediate custodial sentence was therefore appropriate in the ordinary course.

4. The offender’s difficult background and lack of relevant convictions carried some, but not exceptional, weight. Her status as the sole parent of two young children was the principal mitigating feature. The court accepted that custody would affect them, while noting that they would remain at home in their grandmother’s care.

5. Following Petherick [2013] 1 Cr App R (S) 116, the court balanced the legitimate aims of sentencing against the interference with family life. Given the gravity of the offending and the need for deterrence, the public interest substantially outweighed the detriment to the children. The circumstances were not exceptional enough to justify suspension. The sentencing judge had given the case anxious consideration, but had struck the balance wrongly.

6. Custody would nevertheless bear heavily on an offender initially given a non-custodial sentence. Her satisfactory compliance with the suspended sentence order, and the continuing effect on her children, remained mitigating. Those matters justified reducing the immediate term from the sentence otherwise contemplated to 18 months on each count, concurrent, effective immediately.

• Court of Appeal (Criminal Division)—On the Attorney General’s reference under Criminal Justice Act 1988, section 36, the court declared the suspended sentence unduly lenient and substituted concurrent terms of 18 months’ immediate imprisonment.

• Central Criminal Court—The offender was convicted after trial on 11 March 2015 of two offences of perverting the course of justice. On 10 April 2015 she received concurrent sentences of 24 months’ imprisonment, suspended for two years, with supervision and unpaid work requirements. No citation was stated.